Leonard v. Town of Brimfield

• Decision Date: 11 July 1996
• Citation: 423 Mass. 152,666 N.E.2d 1300
• Parties: Mary E. LEONARD v. TOWN OF BRIMFIELD & another. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1300

666 N.E.2d 1300

423 Mass. 152

Mary E. LEONARD v. TOWN OF BRIMFIELD & another. ¹

Supreme Judicial Court of Massachusetts Hampden.

Argued March 5, 1996.

Decided July 11, 1996.

Greg T. Schubert, Springfield, for plaintiff.

William Hewig, III, Boston, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The plaintiff owns sixteen acres of land in the town of Brimfield (town). This action, commenced in 1987, is one of three filed by the plaintiff involving this property contesting actions by the town which effectively limit the plaintiff's use of this land. The plaintiff alleges that the town is artificially channeling surface water onto the property and is improperly enforcing a flood plain zone which restricts development of the property.

As required by the town's zoning by-law, the plaintiff applied to the zoning board of appeals (board) for a special permit to build on her land as it was located in an area designated as a flood plain zone. The board issued a special permit which limited construction on land at or above the 370-foot elevation mark. This effectively limits construction to approximately six of the plaintiff's sixteen acres.

In the first action the plaintiff appealed from the board's special permit restriction as arbitrary or capricious. A Superior Court judge upheld the board's decision, and the Appeals Court affirmed. 27 Mass.App.Ct. 1408 (1989). We denied further appellate review. 405 Mass. 1204 (1989).

The second action involved water channeling claims and was settled by a release dated October 28, 1988. In that release, the plaintiff discharged the town and the town's insurer from all water channeling claims to date including the channeling claims in the present case.

In this action the plaintiff alleges that: (1) the town is liable for damages for artificially channeling surface water onto her property (counts one and two); (2) the town's enforcement of its flood plain restriction constituted a compensable taking under the United States Constitution (count three); and (3) the plaintiff's civil rights had been violated by the chairperson of the Brimfield conservation commission and she was entitled to damages under G.L. c. 12, § 11I (1994 ed.) (count four). ²

The defendants moved to dismiss counts one, two, and three of the complaint arguing that the water channeling release of October 28, 1988, barred those claims. The plaintiff countered by filing a motion to amend with alternative amended complaints. In the first amended complaint, she sought to limit her water channeling claim to damages incurred after the date of the release. In the second amended complaint, she alleged that the enforcement by the town of the flood plain restriction constituted a compensable taking under State law.

The motion judge denied the motion to amend, and allowed the defendants' motion to dismiss counts one and two, treating it as a motion for summary judgment.

A bench trial was held on counts three and four of the present action. The judge found for the defendants on both counts and dismissed the plaintiff's claims for damages. We transferred the case here on our own motion. The plaintiff argues that the judge applied the wrong standard to decide whether the enforcement of the flood plain restriction was a compensable "taking" under Federal law. She also argues that the motion judge erred in denying her motion to amend the complaint.

The validity of the board's enforcement of this zoning by-law has been adjudicated. Therefore, we do not consider issues settled in previous litigation as to the actual likelihood of flooding at the various elevations, nor the validity of the special permit as applied to the plaintiff's land. The only issues before us are whether the plaintiff should be compensated by the town for the decrease in value of her land caused by the restriction and whether she should have been permitted to amend her complaint.

The regulatory "taking" issue. The plaintiff argues that the town's actions constitute a taking under the Fifth Amendment to the United States Constitution.

When a regulatory taking involves neither a physical invasion nor a complete deprivation of use, as in the case here, Federal law has established several interrelated factors which are to be considered in determining whether a compensable taking has occurred: "(1) 'the economic impact of the regulation on the claimant'; (2) 'the extent to which the regulation has interfered with distinct investment-backed expectations'; and (3) 'the character of the governmental action.' " Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225, 106 S.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986), quoting Penn Cent Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978).

(1) Investment-backed expectations. The plaintiff contends that, at the time of purchase, she intended to subdivide the sixteen acres and because of the special permit restriction, she lost the market value of two parcels in her subdivision.

A property owner's investment-backed expectations must be reasonable and predicated on existing conditions. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815 (1984). It must be more than a "unilateral expectation or an abstract need." Id., quoting Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 450-451, 66 L.Ed.2d 358 (1980). The plaintiff's argument fails because she could not have had a reasonable, investment-backed expectation that she would have been permitted to subdivide the flood plain property.

Her property was within a designated flood plain zone and a special permit was required for construction on the lots in question. ³ At the time she purchased the property she had constructive notice of the zoning map, which was available for viewing at the building inspector's office. Her position that the flood plain map should have been recorded with the registry of deeds is without merit. The statute which sets forth the requirements of municipal zoning regulations contains no such requirement, see, e.g., G.L. c. 40A (1994 ed.), and she offers no citation to support this argument.

Because she purchased the property subject to the restrictions on building in a flood plain, she may not complain about the loss of a right she never acquired. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027, 112 S.Ct. 2886, 2899, 120 L.Ed.2d 798 (1992). "[T]he government is not required to compensate an individual for denying him the right to use that which he has never owned." Fragopoulos v. Rent Control Bd. of Cambridge, 408 Mass. 302, 308, 557 N.E.2d 1153 (1990), quoting Flynn v. Cambridge, 383 Mass. 152, 160, 418 N.E.2d 335 (1981).

Furthermore, the trial judge found that the parcel at issue is a single sixteen-acre parcel, not individual lots within this parcel as the plaintiff contends, and that the plaintiff had taken no action to subdivide the property. This finding is completely supported by the record. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Kendall v. Selvaggio, 413 Mass. 619, 620, 602 N.E.2d 206 (1992). The plaintiff did not have a reasonable investment-backed expectation that she could subdivide the property.

(2) Economic impact. The plaintiff's theory of economic impact on the property was also made without considering the existing zoning restriction.

Even if we ignore the fact that the zoning restriction was in place prior to the plaintiff's purchase of the property, the evidence was insufficient...